With the surprising death of Antonin Scalia last week, the already topsy-turvy political year just took another crazy turn. With the death of the rock star of the conservative wing of the Supreme Court, Republicans immediately announced plans to stop Obama from appointing a new Justice to replace Scalia, arguing with sometimes twisted and sometimes absent logic that the new President should fill the vacancy.
Well… thats not how it works.
On November 6th, 2012, the American people gave President Barack Obama a second four-year term as President. That means, until January 20th, 2017, President Obama is just that: President. A duty that the President is constitutionally bound to uphold is the nomination of justices to the Supreme Court in the case of a vacancy.. A duty not a privilege.
Barely had the news seeped out at Scalia’s death before the subject became a political football. It seemed before many had time to express their condolences, the political maneuvering had begun. Regardless of how one feels about Scalia (i certainly found many of his ideas and opinions odious and repellant) it was shocking to see that this man, who had been a public servant for so long, have his legacy completely ignored. Worse still was the blatant political games being played over his seat, a political game that Scalia lamented in his life.
This recalcitrance and failure to act would have dangerous effects on the United States.. For starters, the legal limbo this will throw the nation into is extreme. With a court that can be deadlocked at 4-4, there is no legal solution or answer given in a case. In the event of no majority, the order of the lower court is upheld and the Supreme Courts holding isn’t precedent. While some may look at this as a good thing; sparing certain liberal interests a defeat at the Court, the overall effect on the country is profound. If two circuits take up the same issue and split their rulings, then there is no way to remedy this at the Supreme Court level with a deadlocked bench. This would throw legal status of things like the contraceptive mandate in the Affordable Care Act. into a geographical limbo; in one place it would be legal and in another illegal. Or worse, a tie might actually harm thousands of people such as the immigration order which, if deadlocked, will be reversed. Such a reversal will impact thousands of people potentially unnecessarily, should the next justice agree with the constitutionality of the order.
If republicans get their way, a Republican takes the White House and the hold the Senate, then it would still be approximately two terms of the Supreme Court that would be affected. With the death of Scalia, much of this court may be deadlocked. If the new replacement is made on January 21st, the first day of their term, it is hard to see a divided Senate confirming a nominee in due order since Democrats would angrily hold up any confirmation because the Republicans did the same thing to President Obama. This means effectively two years of patchwork opinions and a stalled judiciary which would harm everyone and serve only to piss off more Americans who think Washington is too aloof from the lives of everyday Americans.
So let’s dispense with (or dispel with, if you prefer) the notion that President Obama, or any President should wait for a new President to nominate a Supreme Court Justice in an election year. This is, as already mentioned, their constitutional duty. Ted Cruz argued that replacing a Justice in an election year has never happened. One would think he would remember Anthony Kennedy, the man that wrote all three of the pro-gay and same-sex marriage cases he so lambasts. And it can hardly be argued that delaying the nomination will have negligible effect on the court system and the U.S. more broadly. The next president will undoubtedly have to replace Supreme court Justices in their tenure. And when they are elected to a four-year term, they have every day of that term to fulfill their oath to the constitution shoulda court vacancy arise.
Lastly, I would like to do away with what many might think is my apparent bias. Certainly I, as a liberal, have a vested interest in seeing Obama nominate a Justice and not, heaven forbid, a President Trump. Well it is certainly the case I would prefer an Obama Justice to a Trump Justice, I certainly wouldn’t begrudge a republican fulfilling their duty. If a judge were to retire in the fourth year of a Republican Presidency, I would be angry at, and write to any of my Senators who felt that holding up or blocking the nomination of a Justice was a good idea. The president nominates and the Senate should confirm the Justice based on whether or not they have the ability to carry out the job to which they are appointed; not to be subject to the whims of an elected body whose main accomplishment in the recent past has been obstruction.